Chapter VII. On the Celebration of Marriage

I say 1°. A twofold error about Marriage is distinguished, namely: 1°. substantial error, which is concerned with the person; 2°. accidental error, which affects the qualities of the person. But condition is understood as servile condition unknown by the other free party, and consequently the impediment which is called condition is nothing other than an error by which the co-party is thought free when she is a slave.

When error is in the apprehension of a thing not necessary for the essence of the contract, but in a certain accident, it brings it about that the contract is voluntary as regards its essence and consequently such simply, but involuntary in a qualified sense and as regards that accident in which the error is concerned. And this error does not exclude consent, nor is anything had in law vitiating such consent. For in reality, in this error, he wills to marry this woman, to be married to this one; and there is the consent of two into the same thing and a contract substantially whole, nor invalid by law. S. C. C., Wallachien., 2 June 1860.

§ 1. Error concerning the person renders marriage invalid.

§ 2. Error concerning a quality of the person, even if it gives cause to the contract, invalidates marriage only:

1°. If error of quality redounds into error of person;

2°. If a free person contracts marriage with a person whom he thinks free, when on the contrary she is a slave, by slavery properly so called (Can. 1083).

Error of person renders marriage invalid. Error is also either of fortune, or condition, or quality.

Error of person is when this man is thought to be Virgilius but he is Plato; error of fortune when this man is thought to be rich who is poor; error of condition when he is thought to be free who is a slave; error of quality when he is thought to be good and is evil. Cause XXIV, q. 1.

Titius wishes to enter marriage with Anna, and Anna with Titius; therefore each, Titius and Anna, wish mutually to hand over and accept the perpetual and exclusive right over the body in order to determinate acts. Titius wishes to hand over the right over his body to Anna, and Anna wishes to accept that right; Anna wishes to hand over the right over her body to Titius, and Titius wishes to accept that right. In the celebration Martha has been substituted for Anna, and Titius, thinking Martha to be Anna, hands over the right over his body not to Martha, but truly to Anna. But Martha cannot accept from Titius a right which Titius does not hand over to her. This error of person on the part of Titius brings it about that the consent furnished to Martha is null in relation to Martha. In other words, the right which Titius wished to hand over over his body, he wished to hand over to Anna; this was the object of the contract, just as the right which he wished to accept was the right over the body of Anna. Error of person removed this object; in the celebration itself he wished to accept as wife not Martha but Anna, and to hand himself over as husband to a woman, not to Martha, with whom he externally expressed the words, but to Anna. Therefore his error made it such that externally he said that he consented to the woman Martha, to whom he consented in no way. This error removed matrimonial consent. For he does not consent to this Martha, but to Anna, whom he thought Martha to be. Consent to Anna remained; consent to Martha was null; therefore there is no marriage with Martha.

If, however, error of quality redounds into error of person, the contract is invalid: that is, if someone judges that he is contracting with another person, not the one whom he accepts externally, and therefore neither does he consent to contract with this one. When therefore does error of quality redound into error of person? When the quality in which there is error designates an individual person, then error of quality falls back into error of person; as if someone wished to marry the firstborn daughter of the king of Spain. For since the apprehension of the mind draws the consent of the will, the will tends toward that which apprehension proposes to it. Wherefore, since the individual person apprehended, by means of that quality of primogeniture by which she is indicated, is proposed to the will, the consent directly and formally tends toward that person, and hence error concerning that quality is error concerning the person. S. C. C., Wallachien., 2 June 1860.

As regards the second paragraph, n. 2: If a free person has contracted with a slave properly so called, judging her to be free, the marriage is null. The conditions are that the free party be ignorant of the servile condition of the other and contract with that ignorance, and that the slavery be strictly so called.

A threefold error renders marriage null: error of person; error of quality redounding into error of person; error of servile condition of one party.

I say 2°. Simple error concerning the unity or indissolubility of marriage, or its sacramental dignity, even if it gives cause to the contract, does not vitiate matrimonial consent (Can. 1084).

For such error does not take away true and sufficient consent, as has been answered many times by the Sacred Congregation of the Holy Office.

A valid marriage can be contracted with a merely concomitant error concerning its indissolubility, because then the general will of contracting according to the institution of Christ prevails, and that general will as it were absorbs the private error. Instruction of the Holy Office, 6 April 1843. - The depraved opinion of the contracting parties, even though confirmed by the laws or customs of the fatherland, namely that the bond of marriage can be dissolved, in no way of itself harms the validity of marriage, unless this opinion is brought into a pact as a condition in the act of entering marriage; for then the marriage becomes null and invalid, as always happens when a condition repugnant to the substance itself has been attached to marriage. Holy Office, 20 June 1866, n. 25. - Marriages entered with only the error of the contracting parties that the bond of consummated marriage can be dissolved in the case of adultery or for other causes are valid. But if they have been entered under this express condition, they must be held as invalid. 11 March 1868, to 2. Error adhering to the mind, which nevertheless has not been brought into a pact or condition, does not harm the validity of marriage. Holy Office, 18 Dec. 1872. Concerning heretics imbued with false doctrine, Benedict XIV, de syn. dioec., 1. 13, c. 22, says thus: It must be believed that they (heretics) wished by a general will to contract a valid marriage according to the law of Christ, and therefore one not to be dissolved even for cause of adultery. For private error can neither be put before nor bring prejudice to the general will of which we have spoken, on which the validity and perpetuity of the contracted marriage depend.

I say 3°. Knowledge or opinion of the nullity of marriage does not necessarily exclude matrimonial consent (Can. 1085). For it does not exclude the general intention of entering marriage according to the law of Christ, and indeed here and now. For they wish to furnish consent truly matrimonial, and thus insofar as they can, as in the example of those who thought that they could not enter before a Turkish judge, although they wished to enter nuptials. Thus such marriages are to be held as valid, as was answered by the Sacred Congregation de Prop. Fide, 1 Oct. 1785. Again the same is established from the sanation of marriage so called civil, which sanation has been conceded not only once. But it could not have been conceded unless matrimonial consent could exist together with such a celebration.

I say 1°. § 1. A marriage entered on account of force or grave fear inflicted from outside and unjustly, from which, in order that someone may free himself, he is compelled to choose marriage, is also invalid (Can. 1087).

This is certainly established from many places of law. Marriage must enjoy full security.

I say 2°. § 2. No other fear, even if it gives cause to the contract, carries with it the nullity of marriage (Can. 1087).

The reason is: 1°. because light fear is not judged to influence consent gravely and efficaciously; 2°. because from positive law only grave fear makes Marriage invalid; 3°. because otherwise innumerable Marriages would become invalid with the greatest detriment to society.

Question 1. Does any grave fear whatsoever dirimently invalidate Marriage?

Resp. Negatively, but the following conditions are required, namely, that it be inflicted 1°. by an external and free cause; 2°. unjustly; 3°. that from it, in order to free himself, someone be compelled to choose marriage.

Question 2. By what law does grave fear dirimently invalidate Marriage?

Resp. Certainly by ecclesiastical law; but whether also by the law of nature is disputed among theologians, and S. Alphonsus, n. 1054, relates reasons on either side. Besides, no practical utility can be derived from the solution of this controversy. For either the discussion is of Marriage to be contracted or of one contracted. If the first, the Church will never dispense unless the cause of fear is first removed; if the other, that Marriage will never be declared invalid unless it has first been proved, in the external forum, that all the conditions which the Church requires for grave fear were verified. - Cf. Ballerini, note (c), p. 806.

A clandestine marriage is called that which is contracted without the solemnity required by the Church.

Question 1. What are the dioceses and places, among us, where the Decree Tametsi was in force de facto, whatever finally may have been the origin and mode of its promulgation?

Resp. This question, which nevertheless regards some fact and not law, was previously wrapped in great obscurity, and diverse responses and opinions for thinking were being circulated. But now, by the work of the Third Plenary Council of Baltimore, it has a clear solution, for the Fathers of this Council, "after the matter had been studiously investigated, came to this opinion," from which it is certainly not licit to recede: "The Decree Tametsi is not in force in the following ecclesiastical Provinces, namely: 1. Baltimore; 2. Philadelphia; 3. New York; 4. Boston; 5. Oregon City; 6. Milwaukee; 7. Cincinnati, except the diocese of Vincennes; 8. St. Louis, except the city of St. Louis itself and certain other places of the same Archdiocese soon to be named; 9. Chicago, except certain places of the diocese of Alton to be cited presently."

"But in the other places of the same United States the decree Tametsi is judged to be in force, namely: 1°. in the whole province of New Orleans; 2°. in the province of San Francisco with the territory of Utah, except that part of the same territory which lies to the east of the Colorado River; 3°. in the province of Santa Fe, except the northern part of the territory of Colorado; 4°. in the diocese of Vincennes; 5°. in the city of St. Louis, and also in the places called St. Genevieve, St. Ferdinand, and St. Charles, of the Archdiocese of St. Louis; 6°. in the places called Kaskaskia, Cahokia, French Village, and Prairie du Rocher, of the diocese of Alton." - Cf. Responses of the Holy See to the Postulates of the Fathers, in the Third Plenary Council of Baltimore, p. cvii. Cf. S. C. d. P. F., 15 April 1901.

Question 2. Were clandestine Marriages of heretics among themselves, or mixed ones, valid where the Tridentine law concerning clandestinity was in force?

Resp. Affirmatively, if however the discussion is of those places to which the Declaration of Benedict XIV was extended, by which in the year 1741 the Supreme Pontiff established that clandestine Marriages entered or to be entered in Holland and in the federated Provinces of Belgium, between heretics or between one heretical party and another Catholic party, are valid. Moreover, this Benedictine Declaration was afterwards extended to several regions of Europe, and as regards us, it had also been extended to several dioceses and places by the work of diverse Bishops; but since, at the time when the last Plenary Council was celebrated, there were still some dioceses to which it certainly had not been extended, and concerning some others there was doubt, the Fathers of the Council requested that, for inducing uniformity, it be extended to all those places, or be declared certainly to have been extended, in which the Decree Tametsi is certainly known to be in force. Moreover, to this petition the response was that this extension was conceded "only" for the dioceses of San Antonio and Galveston and for the Apostolic Vicariate of Brownsville, in which the matter was doubtful. Whence it follows that the Benedictine Declaration had not been in force in the Province of Santa Fe, to which it certainly had not been extended before the aforesaid petition was made. - Cf. Responses of the Holy See, etc., in the Third Plenary Council of Baltimore, pp. cviii and cix. - Feije, de impedimentis Matrim., nn. 306 and following. - Ballerini, note (a), p. 811, and note (a), p. 820. - Kenrick, n. 186. - Nilles, Part 1, p. 224.

Question 3. Who were those who came under the name of heretics, when it was a question of places where the Benedictine Declaration was in force?

Resp. The solution is clear from the following rescript of the Holy Office, 6 Apr. 1859, which could and had to be applied also to other regions besides Holland. - When the doubt had been proposed: "Whether, for the understanding of the celebrated Declaration of Benedict XIV for Holland, the following five classes can be comprehended under the name of heretic: 1°. those who, baptized Catholic, from childhood not yet seven years old are educated in heresy and profess heresy; 2°. those who are educated not so much in heresy as by heretics, namely with no or scarcely any instruction in heretical doctrine received, and worship not frequented, although sometimes participated in; 3°. those who, while still children, falling into the hands of heretics, are joined to a heretical sect; 4°. apostates passing over from the Catholic Church to a heretical sect; 5°. those who, born and baptized by heretics, have grown up without having emitted any solemn profession of heresy, and as it were of no religion, etc.? ..." The Sacred Congregation responded: "For the effect of Marriage, those enumerated above are comprehended in the praised Declaration of Benedict XIV." - Cf. Feije, n. 319.

Question 4. What was our special privilege in relation to acquiring quasi-domicile for the effect of contracting valid Marriage?

Resp. "The Eminent General Inquisitors on the day 6 May 1886, the matter maturely considered, issued the following decree: 'At the petition of the Council of Baltimore, supplication is to be made to His Holiness that he deign to decree, in the Confederate States of America, that those transferring themselves from a place where the chapter Tametsi is in force to another place, provided they have stayed there continuously for the space of at least one whole month and have proved the liberty of their state, as is of law, are to be judged to have quasi-domicile there in order to Marriage, without inquiry having to be made concerning the intention of remaining there for the greater part of a year.' - But in the audience of the day 12 May 1886, at the report of R. P. D. Joseph D'Annibale, assessor of the Holy Office, the Most Holy Lord Leo XIII deigned by his authority to hold ratified and to confirm the aforesaid Decree of the Eminent Fathers, anything whatsoever to the contrary notwithstanding." - Cf. Third Plenary Council of Baltimore, p. cix. Revue des Sciences Ecclesiastiques, February 1881, p. 187. - O'Kane, nn. 1021 and following. - Irish Ecclesiastical Record, Nov. and Dec. 1883; and Feb. 1884. - Ballerini, note (a), p. 824, and (b), p. 811. - Nilles, part 1, p. 266.

Only those marriages are valid which are contracted before the pastor, or the local Ordinary, or a priest delegated by either one, and at least two witnesses, yet according to the rules expressed in the canons which follow, and with the exceptions saved concerning which in can. 1098, 1099 (Can. 1094).

§ 1. The pastor and the local Ordinary validly assist at marriage:

1°. Only from the day of acquired canonical possession of the benefice according to the norm of can. 334, § 3, 1444, § 1, or of begun office, unless by sentence they have been excommunicated or interdicted or suspended from office, or declared such;

2°. Only within the limits of their territory; in which they validly assist at marriages not only of their own subjects, but also of non-subjects;

3°. Provided that, constrained neither by force nor by grave fear, they ask for and receive the consent of the contracting parties.

§ 2. The pastor and the local Ordinary who can validly assist at marriage can also give license to another priest that he validly assist at marriage within the limits of their territory (Can. 1095).

Who are pastors, and those equated with them, is clear from Canon 451:

§ 1. A pastor is a priest or moral person to whom a parish has been conferred as title, with care of souls to be exercised under the authority of the local Ordinary.

§ 2. With pastors are equated, with all parochial rights and obligations, and they come in law under the name of pastors:

1°. Quasi-pastors, who rule quasi-parishes, concerning which in can. 216, § 3;

2°. Parochial vicars, if they are endowed with full parochial power.

§ 3. Concerning military chaplains, whether major or minor, one must stand by the peculiar prescriptions of the Holy See (Can. 451).

The distinct parts of a diocese into which the diocese itself is divided, to each of which its own particular church with a determined people is assigned and its own particular and proper pastor is set over it for the care of souls, are parishes; parts of an apostolic vicariate and prefecture, if a particular rector is assigned, are called quasi-parishes. Cf. Can. 216, § 3.

§ 4. Without a special apostolic indult, parishes cannot be constituted according to the diversity of language or nation of the faithful living in the same city or territory, nor merely familial or personal parishes; but as regards those already constituted, nothing is to be innovated without consulting the Apostolic See (Can. 216).¹

For the validity of marriage there is required the presence of the pastor or local Ordinary or a priest delegated by either one, and of at least two witnesses; two exceptions are given which we shall explain below.

Nevertheless, in relation to the pastor and local Ordinary, this one and that one validly assist only from the day of acquired possession of the benefice or of begun office.

But if by sentence they have been excommunicated, or interdicted, or suspended from office, or declared such, their assistance is invalid.

The pastor and Ordinary can validly assist only in their own territory.

But in their own territory they validly assist at marriages not only of subjects but also of non-subjects.

Moreover, that this assistance be valid, it is further required that they have been constrained neither by force nor by grave fear.

Finally, it is necessary that they ask for and receive the consent of the contracting parties.

In these points a great distinction is now introduced between the law in force before the Decree Ne Temere and the present law of the Code.

Formerly the announced pastor validly assisted; but now his competence is annexed to the possessed benefice or the office already begun. Formerly he could validly assist as long as he was pastor, although excommunicated or interdicted or suspended from office by public decree through sentence, or declared such; but now he who is bound by such a censure is declared incompetent. Formerly he validly assisted at marriages of his own subjects everywhere on earth; but now he can validly assist only in his own territory. Formerly he validly assisted only at marriages of subjects even in his own territory; but now there he validly assists both subjects and non-subjects. Namely, his competence is territorial, restricted within the limits of his own parish but extended also to marriages of non-subjects. Hence the ancient discipline of the proper pastor is abolished, by which formerly the assistance of that pastor in whose parish at least one of the contracting parties had domicile or quasi-domicile was required for validity; but now the contract must be entered before the pastor of the territory in which the contract is entered, although neither party is his subject. Formerly the pastor validly assisted, although constrained by force or grave fear; hence surprise marriages were valid. But now he assists validly only when free from force and grave fear. Formerly the pastor validly assisted when present under compulsion, yet perceiving words signifying the mutual matrimonial consent of determinate betrothed persons; but now for validity it is required that he ask for and receive the consent of the contracting parties.

Therefore the assistance of the pastor must be physical, formal, free, and active.

¹ Cf. Addenda, p. 1109, n. 52.

As regards Marriages to be Celebrated, these things are established for our army and navy.

I. Priest Chaplains of the Army and Navy of the United States of North America, during war, enjoy the full faculty of assisting at the marriages of all those who pertain to the Army and Navy of the United States, whether in regions which are subject to the dominion of the United States, or elsewhere. But in marriages which are celebrated outside the territory of the United States of North America, the local Diocesan Chancery must be approached, lest they be contracted against the laws of the region, and especially in those cases in which one of the contracting parties is not an American citizen.

II. Those pertaining to the Army or Navy of the United States of North America are also able to celebrate marriage either under the jurisdiction of the Bishop of origin, or of the Bishop of the place in which they are staying temporarily in camps, or of the Bishop of the Diocese through which they are journeying.

III. The faculty conceded to the Military Ordinary in relation to the celebration of marriage is not privative but cumulative, namely, it does not exclude the jurisdiction of those who by other titles are able to furnish this according to the norm of law.

IV. Chaplains of the Army or Navy are not to assist at marriages unless after previous investigation, especially with the pastor of the woman.

V. Petitions for obtaining dispensations are to be sent to the Military Ordinary or to the Military Vicar General.

VI. The document of the contracted marriage, according to the decree Ne Temere, is to be carefully prepared and sent to the Military Ordinary; but a copy of the document is to be kept by the Chaplain until the Military Ordinariate renders him certain concerning receipt of the original.

Question 1. When does the Ordinary or pastor begin to be competent as the authorized witness of marriage?

Resp. From the day of acquired possession of the benefice or of begun office.

§ 3. Residential Bishops take canonical possession of a diocese as soon as, in the diocese itself, either personally or through a proxy, they have shown the apostolic letters to the Chapter of the cathedral church, in the presence of the secretary of the Chapter or the chancellor of the Curia, who is to refer the matter into the acts (Can. 334).

§ 1. Induction into possession of a benefice is to be made according to the mode prescribed by particular law or received by legitimate custom, unless from a just cause the Ordinary has expressly dispensed in writing from that mode or rite; in which case this dispensation takes the place of possession taken (Can. 1444).

Question 2. Can a putative pastor validly assist?

Resp. Affirmatively, if from common error he is judged such.

Question 3. Does any priest of the diocese, exercising the sacred ministry without special delegation of the local Ordinary or pastor, validly assist at marriage by force of a general faculty conceded to him of administering all sacraments which do not require the episcopal order?

Resp. Negatively.

Question 4. Which excommunicated, suspended, or interdicted pastor is not competent?

Resp. A pastor is not competent who by sentence has been excommunicated, suspended from office, or interdicted, or declared such. This disposition of the Code corresponds to other canons by which it is required, for external penal effects, that the penalty have been inflicted or declared by condemnatory sentence, especially when it is a question of privation or restriction of the use of priestly power or of other sacred ministers. Cf. Can. 2261, 2264, 2275, 2284.

Question 5. Whether by a prohibition made by the Ordinary, lest the pastor espouse certain persons, the jurisdiction of that pastor is so taken away that, for contracting marriage contrary to such a prohibition, he is not the legitimate pastor?

Resp. "That the marriage contracted before a pastor to whom it has been interdicted by the Bishop lest he intervene is valid." Thus the Sacred Congregation of the Council in the Gienn. case, year 1581. "On which matter," says Benedict XIV, "there seems to be able to be stirred up no difficulty of graver moment. For since there is not that authority in the Bishop that he could induce a diriment impediment which does not exist, or establish as null and invalid some marriage which by the prescription of the canons is not null and invalid, the marriage will indeed be illicit if it is celebrated before him whom the Bishop has forbidden to be present at a celebration of this kind; he also will sin gravely who, with the superior's prohibition despised, furnishes assistance to it; but by no reason will it be able to be said that the marriage itself lies under the defect of nullity." - De Syn. Dioec., 1. 13, c. 23.

Question 6. What things are required that the assistance of the pastor be valid?

Resp. From what has been said it is clear that two things are required: 1°. he must be a voluntary witness, coerced by no force or grave fear; 2°. he must assist actively by asking for and receiving the matrimonial consent of the spouses. That this mode of assistance, formal, voluntary, and active, is necessary for validity is gathered first from the fact that it is prescribed as a condition sine qua non, through the particle provided that, and second from the end of the legislator, who intends to found those statutes by which all marriages made by surprise are rendered null and invalid. - Cf. Acta S. Sedis, v. 40, p. 531.¹

¹ Cf. Addenda, p. 1111, n. 54.

Question 7. "Whether Ordinaries and pastors, not only explicitly but also implicitly invited and asked, provided nevertheless that constrained neither by force nor by grave fear they ask for and receive the consent of the contracting parties, can validly assist at marriages?"

Resp. "Affirmatively." Thus the Sacred Congregation of the Council, 28 Mar. 1908. It is no longer required that the pastor assist as one invited and asked. - Cf. Can. 1095, § 1.

Question 8. What is the competence of the Ordinary and pastor in relation to marriage?

Resp. It is territorial. But the territory is diverse: that of the Ordinary is the diocese, vicariate, etc.; but that of the pastor is a parish canonically erected, a quasi-parish, or a district defined and perfectly divided from others, or an entire station in places where the territories are not yet perfectly divided. - Leitner, Die Verlobungs- und Eheschliessungsform, p. 33. Cf. Can. 451, §§ 1, 2.

Question 9. What fear invalidates the assistance of the pastor?

Resp. Grave fear, or fear falling upon a constant man. A constant man is one who in some class is of ordinary fortitude, namely, who above others of the same class is distinguished neither by timidity nor by strength of soul. The fear will be grave when the evil inflicting it is such that no one fearing it loses the name of a constant man. Whenever such fear is inflicted by an extrinsic free cause in order to compel the assistance of the pastor, and for that reason he assists, the marriage is null and invalid. But if the pastor unjustly refuses to assist, and on account of this cause is compelled by grave fear to be present, even then the contract must be called null. For where the law does not distinguish, neither ought we to distinguish; but the law simply excludes assistance furnished from grave fear. This vexation can easily be removed, because any pastor or Ordinary is suitable and competent for the validity of marriage, indeed in a case of necessity even for liceity. Nevertheless the wedlock entered before a pastor who, finally yielding to importunate prayers, assists will be valid.

Question 10. What is established by the new law in relation to witnesses?

Resp. Besides the presence of an authorized witness, at least two witnesses are required; therefore more can be present. As regards them the ancient discipline is in force. It suffices that they enjoy the use of reason. Therefore non-Catholics can also validly be assumed, or those deceived by fraud or coerced by fear; adults or minors; men or women; wholly unwilling and not knowing how to write. Nevertheless heretics are illicitly assumed. S. C. Inq., 19 Aug. 1891.

Their assistance must be such that they can testify concerning the marriage celebrated of this bridegroom and bride. Therefore material presence is not sufficient, but it is necessary that the witnesses know what is being done. Therefore they must see the spouses and perceive and understand the signs expressing consent; but if they do not see the contracting parties themselves, yet hear known voices while they pronounce consent, the assistance is valid.

Nevertheless it is not required that determinate witnesses be invited, or that certain persons be so employed that these and not others are witnesses; but it suffices that those who are present at the celebration can make faith concerning the marriage entered, since it is certainly established to them concerning the furnishing of consent. And hence a marriage entered before the pastor and several persons, all of whom can duly testify concerning the consent given, is valid, although the two invited witnesses were not present.

Question 11. Whether "exempt regular churches, according to the tenor of the decree, can be considered as the territory of the pastor or Ordinary in whose territorial district they are situated, for the effect of assistance at marriage?"

Resp. "Affirmatively." (S. C. de Sacr., 13 Mar. 1910.)¹

¹ Cf. Addenda, p. 1151, n. 126.

You Will Resolve. - Marriages are invalid:

1°. When the pastor or Ordinary or one delegated by either is lacking;

2°. When at least two witnesses do not assist;

3°. When it is contracted before the proper pastor of the spouses outside his own territory without the necessary delegation of the Ordinary or pastor of the place in which it is contracted;

4°. When it is contracted before a non-delegated priest, or before a delegated deacon;

5°. When it is contracted before the pastor announced for the place, but not yet possessing the benefice;

6°. When it is contracted before a pastor excommunicated or interdicted or suspended from office by sentence;

7°. When it is contracted before a pastor compelled by grave fear to assist;

8°. When it is contracted before an invited pastor, indeed hearing but not asking for consent;

9°. When it is contracted before a pastor present by chance, but not actively assisting.

§ 1. But the pastor or local Ordinary assist licitly at marriage:

1°. When it has been legitimately established to them concerning the free state of the contracting parties according to the norm of law;

2°. When it has further been established concerning the domicile or quasi-domicile or monthly stay, or, if it is a question of a wanderer, the actual stay, of one or the other contracting party in the place of marriage;

3°. If the conditions concerning which in n. 2 are lacking, when license has been had from the pastor or Ordinary of the domicile or quasi-domicile or monthly stay of one or the other contracting party, unless either it is a question of wanderers actually journeying, who nowhere have a seat of stay, or a grave necessity intervenes which excuses from license to be sought.

§ 2. In any case let it be held as a rule that marriage be celebrated before the pastor of the bride, unless a just cause excuses; but marriages of Catholics of mixed rite, unless something else has been provided by particular law, are to be celebrated in the rite of the man and before his pastor.

§ 3. A pastor who assists at marriage without the license required by law does not make the stole-fees his own, and he is to remit them to the proper pastor of the contracting parties (Can. 1097).

Before marriage is celebrated it is necessary to observe the dispositions of law concerning free state, concerning banns, and all other things pertaining to it. Thus the Roman Ritual, tit. de sacr. matrim.: "The pastor, admonished concerning some Marriage to be contracted in his Parish, should first know from those to whom it pertains who and of what sort they are who wish to contract Marriage: Whether there is some impediment between them; Whether they wish to contract spontaneously, freely, and according to the honesty of the Sacrament; Whether they are of legitimate age, so that the man has completed at least fourteen¹ years, the woman twelve² years; and that each knows the rudiments of the Faith, since they ought afterward to teach these to their children." "Moreover, let the Pastor beware lest he easily admit to contracting Marriage wanderers and travelers and those who have uncertain seats; nor likewise those who have been married before, as are the wives of soldiers or captives or of others who are journeying, unless, after diligent inquiry has been made concerning all these things, and the matter referred to the Ordinary, license for celebrating Marriage of this kind has been had from him, which is to be conceded gratis." Finally, proclamations are to be made according to the statutes of law. By natural and positive law under grave obligation, the pastor is bound before he joins the spouses to institute an investigation concerning free state, that is, concerning their immunity especially from the impediment of bond and from all other impediments, both diriment and impeding. In no way can the pastor licitly proceed to the celebration unless it is established to him concerning this immunity. In this matter let there be compared the Third Plenary Council of Baltimore, Appendix, pp. 258 and following, pp. 274 and following, and diocesan statutes. Wernz, v. 4, n. 130 and following. Besson, Nouvelle Revue Theologique, tom. 40, p. 76. - Boudinhon, Le Mariage et Les Fiancailles, n. 71 and following. - McNicholas, The New Marriage Legislation, p. 35: This last little book, most excellently adapted to our conditions, is altogether to be consulted. - Cf. Can. 1067, § 1.

¹ Now, sixteen.

² Now, fourteen.

Question 1. What else must be established to the pastor before he can licitly assist at marriage?

Resp. It must be established to him concerning domicile or quasi-domicile or monthly stay, or, if it is a question of a wanderer, concerning actual stay in the place of marriage. By the Code quasi-domicile has been reintroduced into matrimonial law in relation to its celebration. - Cf. Can. 92, under n. 80.¹

¹ Cf. Addenda, p. 1112, n. 55.

Question 2. How is the place of marriage mentioned in n. 2 to be understood?

Resp. The place of marriage is the parish or diocese; parochial and diocesan domicile is given. - Cf. Can. 92 under n. 80.

Question 3. How is monthly stay to be understood?

Resp. Generally a month signifies thirty days. - Cf. Can. 32. But we ought not to interpret the matter too rigorously. Wherefore if someone, after habitation in the place has already been begun, were absent by chance for one or another day, this would not prevent him from being said, at the end of thirty days from entrance into the place, to have stayed there for a month.

Moreover, stay in a place here designates residence; thus it can be that someone works during the day in one parish, but has the seat of residence in another. His pastor for marriage is the rector of this latter, not of the former. Stay in no way requires continuous presence. Cf. Besson, l. c., pp. 78 and following. Gennari, Il Mon. Eccles., Sec. Ser., v. 10, p. 90. - Ojetti, l. c., n. 97. - Vermeersch, De Religiosis, v. 4, p. 176.

Question 4. What is required if neither of the spouses has domicile or monthly stay in the place of marriage?

Resp. The pastor and local Ordinary assist licitly: "when, if the conditions concerning which in n. 2 are lacking, license has been had from the pastor or Ordinary of the domicile or quasi-domicile or monthly stay of one or the other contracting party, unless it is a question of wanderers actually journeying, who nowhere have a seat of stay, or a grave necessity intervenes which excuses from license to be sought."

Question 5. Is monthly stay in a parish to be computed from the day of conversion, say of Titius, to the Catholic faith, or rather from his entrance into the parish?

Resp. The merely external fact of stay suffices for liceity, abstracting from the fact of the conversion of Titius to the faith. Moreover, the will of the legislator must be sought from the words of the law according to that saying: "The legislator expressed what he willed." But now only monthly stay of one or the other contracting party is required, without any discussion being had concerning their religion. Therefore only the material fact of stay is exacted for liceity, with the other things to be observed by law being observed. But this monthly stay must be morally continuous. S. C. de Sacr., 28 Jan. 1916.

Therefore license is to be sought from the pastor either of domicile or quasi-domicile or monthly stay of the spouses. - Cf. Vermeersch, l. c., n. 60. - Gennari, l. c., p. 30. - Bucceroni, Supplementum, n. 13.

This license, since it is not delegation nor necessary for validity, seems to suffice if it is presumed or interpretative. Thus Gennari, l. c. - Pezzani, l. c., n. 94. Grave necessity excuses from obtaining or even seeking this license, some urgent cause for the celebration of marriage, which cannot be deferred except with a notable inconvenience altogether, until license is obtained. In this case the pastor also assists licitly. Authors counsel that the reason for license not sought be preserved by some document, for avoiding inconveniences perhaps to arise afterward.

But if the pastor refuses to give license sought from a just cause, recourse can be had to the Ordinary or to the pastor of the other spouse.

Question 6. When does the pastor licitly assist at marriages of wanderers?

Resp. At the marriage of wanderers concerning whom in can. 91, the pastor, except in a case of necessity, should never assist unless, after the matter has been brought to the local Ordinary or to a priest delegated by him, he has obtained license to assist (Can. 1032).

Question 7. Who are wanderers according to the new Code?

Resp. Wanderers are those who nowhere have domicile or quasi-domicile. Thus the new Code, can. 91. And therefore the sense of wanderer is now fixed. The prohibition of assisting without permission of the Ordinary or delegated person, outside a case of necessity, extends itself to all wanderers who are held such according to Can. 91.

This license is to be sought either from the Ordinary or from a priest delegated by him for this. As is clear, in large dioceses it would be a very grave burden for the Ordinary to attend to this by himself. Canon 1032 meets this difficulty, by force of which he can designate priests in various parts of the diocese who may discharge this function. Therefore the pastor must have recourse to the delegate or to the Ordinary, but only after a diligent examination concerning free state has been instituted; and if there are any diocesan laws on this point, they must be observed exactly. Although it is established to him concerning the liberty of the parties, nevertheless he cannot take a step toward the celebration before license has first been obtained. Necessity would certainly excuse, for example, a marriage to be legitimated in a case of death, where there would be danger in delay; but even in this case the pastor is bound according to his powers to guard beforehand against the danger of nullity of the sacrament. - Cf. Vermeersch, l. c., n. 62. - Besson, l. c., n. 86; Pezzani, l. c., n. 98, 99. - Gennari, l. c., p. 31. - Creagh, l. c., p. 48.

Question 8. What if one of the spouses is a wanderer?

Resp. The disposition of this canon, which renews the Tridentine decree, must be observed. Therefore the pastor must bring the matter to the Ordinary or delegate, and, after permission has been received, he can licitly assist at the marriage without license of the pastor of the other spouse being sought; for he himself is then the proper pastor at least as regards the effect of this canon. - Cf. Vermeersch, l. c., n. 63. - Besson, l. c., p. 90, 1° (d). - Gennari, Il Monitore Ecclesias., Sec. Ser., v. 10, p. 90.

Question 9. Who ought to assist when the bridegroom and bride are from diverse parishes?

Resp. In any case, let it be held as a rule that marriage be celebrated before the pastor of the bride unless some just cause excuses. - Cf. Can. 1097, § 2.

The same must be said here concerning pastor as also before: namely, he is the one in whose parish the bride either is domiciled or quasi-domiciled or has already stayed for a month. Hence if the bride is subject to one pastor only by reason of that stay, but the man to another by reason of domicile, regularly the marriage is to be celebrated before the former, because he, in the sense of this law, is the woman's pastor.

By this paragraph a norm is established by which matters may proceed better. But from following this norm any just cause of convenience or utility excuses, indeed the very desire of the spouses, if they refuse to present themselves before another pastor. A grave reason is not required here, but simply a just one. Wherefore we also judge with Vermeersch, l. c., n. 64, that the obligation of this paragraph is not grave. Therefore pastors of brides ought not to be excessive in urging their right.

"Marriages of Catholics of mixed rite, unless something else has been provided by particular law, are to be celebrated in the rite of the man and before his pastor" (Can. 1097, § 2). Marriages both among the Greek-Ruthenian faithful and among the faithful of mixed rite are to be blessed in the rite of the woman by the pastor of the woman. Thus S. C. de Prop. F., 17 Aug. 1914, De Spirituali Administratione Ecclesiae Graeco-Ruthenae in Foederatis Civitatibus Americae Septentrionalis.

Question 10. What if the bride has domicile in one parish, but monthly stay in another?

Resp. The celebration can licitly take place before the pastor either of the domicile or of the monthly stay.

Question 11. Can this rule be observed when the bride is a wanderer?

Resp. Affirmatively of itself. "In any case," the canon says. And although very often there is a just cause of celebrating before the pastor of the bridegroom, nevertheless to the bride is attributed a right before the bridegroom, nor can any indication be found of a contrary will of the legislator. - Cf. Besson, l. c., p. 88. - Vermeersch, l. c., n. 64. Nevertheless see above, Question 8.

1°. For the valid celebration of Marriage the Code designates any pastor in his own territory; but for licit celebration, the pastor either of domicile or quasi-domicile or monthly stay. Therefore his competence for validity is restricted to the limits of his own parish; for liceity, to persons domiciled or quasi-domiciled or already staying for a month in the parish. Within his own territory he validly assists at all marriages; outside it, without delegation, at none. Within his own territory he licitly assists at marriages of his own people, whether by reason of domicile or quasi-domicile or by reason of that stay, but not of strangers without license.

2°. Since domicile is immediately acquired by the fact of habitation in some parish with the intention of remaining there perpetually, of itself it would be licit to celebrate marriage immediately.

3°. Simple monthly stay in a parish suffices for licit celebration; therefore whether someone happens to be there by chance, or went there purposely for the sake of wedlock, he contracts licitly in that place before the pastor. For stay in fraud of the law is no longer to be considered.

As regards the liceity of assistance within one's own territory, the following should be kept before the eyes:

Both parties have domicile or monthly stay in the parish of the contract; or only one party, while the other has it elsewhere or does not have it; or neither party.

As regards the first hypothesis: the pastor or local Ordinary, or one delegated by either, can assist from the first day of acquired domicile according to the things just said, or, if they are not domiciled, only after a month.

As regards the second hypothesis: that one party is either the bride or the bridegroom, and the other party, as we first suppose, is not a wanderer. If it is the bride, the pastor can always licitly assist; if it is the bridegroom, regularly the pastor cannot licitly assist unless there is a just cause excusing from the norm prescribed in § 2; if the other party is a wanderer, the matter is to be brought to the Ordinary or to the delegate, and license is to be obtained from him.

As regards the third hypothesis: when neither party has domicile or monthly stay in the parish of the contract, either each has it elsewhere, or both or one or the other is a wanderer. When each has it elsewhere, the pastor of the place of the contract ought not to assist before he has received license from the pastor of the bride; but if a just cause is present, let him have recourse to the pastor of the bridegroom; if, however, grave necessity urges, he assists by law without license. When both or one or the other is a wanderer, the matter must be arranged with the Ordinary.

The pastor, for example of St. Aloysius, licitly assists at nuptials between Titius and Bertha in the following cases, supposing that their free state is legitimately established:

1°. Titius and Bertha have domicile in the parish of St. Aloysius.

2°. Titius and Bertha have monthly stay in the same parish.

3°. Bertha has domicile or monthly stay in the parish of St. Aloysius; Titius has domicile or monthly stay in the parish of St. Joseph.

4°. Titius has domicile or monthly stay in the parish of St. Aloysius, Bertha in the parish of St. Patrick; nevertheless a just cause is present excusing them from contracting before the pastor of the bride.

5°. Titius has domicile in the parish of St. Aloysius, Bertha is a wanderer; the pastor of St. Aloysius has received license to assist from the Ordinary or from a priest delegated for that.

6°. Titius is a wanderer, Bertha has monthly stay in the parish of St. Aloysius. Necessity of celebrating immediately urges.

7°. Titius and Bertha have domicile or monthly stay in the parish of St. Joseph; the pastor of St. Aloysius has received license to assist from the Ordinary or from the pastor of the spouses.

8°. Titius and Bertha have domicile in the parish of St. Joseph; grave necessity intervenes excusing from obtaining the aforesaid license.

9°. Titius has domicile or monthly stay in the parish of St. Joseph, Bertha in the parish of St. Mark; the pastor of St. Aloysius has obtained license from the pastor of the bride, or from the Ordinary.

10°. Titius has domicile in the parish of St. Peter, Bertha in the parish of St. Mark. There is present a just cause excusing them from entering marriage before the pastor of the bride, who refuses to give license justly sought to the pastor of St. Aloysius. This latter has received it either from the Ordinary or from the pastor of the bridegroom.

11°. Titius and Bertha are wanderers; or, Titius has domicile in the parish of St. Patrick and Bertha is a wanderer. The pastor of St. Aloysius, after the matter has been brought to the Ordinary or delegate, has obtained license to assist.

12°. Titius and Bertha are wanderers; or, Titius has domicile in the parish of St. Patrick, Bertha is a wanderer. They present themselves before the pastor of St. Aloysius. The necessity of celebrating urges.

§ 1. License of assisting at marriage, conceded according to the norm of can. 1095, § 2, must be given expressly to a determinate priest for a determinate marriage, with any general delegations excluded, unless it is a question of cooperating vicars for the parish to which they are attached; otherwise it is invalid.¹

§ 2. The pastor or local Ordinary is not to concede license unless all things which the law constitutes for proving the liberty of state have been fulfilled (Can. 1096).

Therefore a priest who is not pastor or Ordinary needs license from either one so that he may validly and licitly assist. This license is not delegation properly so called, and therefore perhaps in the article that word is employed, not this one. Concerning it, what Wernz already skillfully observed in his excellent work, v. 4, n. 180, 1, must be noted: "The concession of license to assist is not an act of jurisdiction by which ecclesiastical jurisdiction is truly delegated to another, but by better right is called the substitution of another authorized witness, by force of the faculty received from the Council of Trent, which has great likeness with delegation."

¹ Cf. Addenda, p. 1109, n. 52; p. 1150, n. 125.

Question 1. Who is the delegating pastor or Ordinary?

Resp. The Ordinary or pastor is understood not of the contracting parties, but of the place in which the matrimonial contract is celebrated: the Ordinary, namely, for his diocese, and the pastor for the parish. For validity requires the assistance of the pastor or Ordinary of the place of contract, or of one delegated by either. Hence if a priest assisted in some territory without delegation from the Ordinary or pastor of this place, although with license of the pastor of the contracting parties, the marriage would be invalid.

Question 2. To whom can this license or delegation be conceded?

Resp. This license or delegation can be conceded only to a priest, and to one certain and determinate, but not to a deacon, nor to an indeterminate priest. Delegation is validly made by naming the priest personally, or by designating his office, for example, Father N.; the pastor of St. Patrick; the first assistant of the church of St. Anne; the chaplain of St. Mary's orphanage; for in all these cases the priest is truly determinate and certain. But delegation by which the choice of any priest at pleasure is left to the spouses is null; for it is made to an indeterminate person.

Question 3. In what way must this delegation be made?

Resp. The Code prescribes no mode. Wherefore it can be conceded to the delegate either in writing or by living voice, without intermediary or through a messenger, absolutely or conditionally. - Cf. Wernz, l. c.

Question 4. Can a pastor generally delegate certain persons for his own territory?

Resp. Negatively: § 1. License must be given expressly to a determinate priest for a determinate marriage, with any general delegations excluded, unless it is a question of cooperating vicars for the parish to which they are attached; otherwise it is invalid (Can. 1096).

Question 5. Does tacit or even presumed delegation suffice?

Resp. Negatively to both; because according to the canon it must be given expressly, and presumed delegation is null. In the Code expressly and tacitly do not sound the same. - Cf. Can. 1123.

Question 6. Is this license or delegation circumscribed by territorial limits?

Resp. It is always circumscribed within the limits of the territory of the delegating person. Hence one conceded by the Ordinary is so circumscribed by the limits of the diocese that outside it it cannot even validly be employed. By like reason, one conceded by the pastor is circumscribed by the limits of the parish.

Question 7. What must be said if a pastor, constrained by grave fear, delegates a priest, and this priest, invited and asked, assists and asks for and receives consent?

Resp. It is disputed. The first opinion denies that the delegation is valid. For no one can transfer to another more right than is known to belong to himself. - Cf. Gennari, l. c., p. 56. - Pezzani, l. c., n. 119. But the other opinion affirms that the delegation is valid. For although the pastor himself cannot validly assist, nevertheless it has not been provided in law concerning the invalidation of the concession of license to assist, which indeed is not an act of jurisdiction, but by better right is called the substitution of another authorized witness. Cf. Ojetti, l. c., n. 103. - Ferreres, l. c., n. 309 and following. Vermeersch, l. c., n. 50.

Question 8. Does the delegate validly assist before he knows that delegation has been given?

Resp. Affirmatively, if he himself sought it and assists only after it has been given. For the very petition is tacit acceptance. In this case delegation is valid from the moment of concession. Certainly such assistance would be illicit after delegation has been given but before it is known.

Negatively, from the common opinion, if the concession is made while the delegate is ignorant and has not sought it, although a third person seeks it for him without his knowledge. See the response (in Wernz, n. 180, note 218) of the Sacred Congregation of the Council, 9 Dec. 1626: "Given ignorance of the license, the marriage is invalid." And again 3 July 1734: "Acceptance of the license or delegation is required." The reason is that this license has itself after the manner of a donation, which obtains effect only from the time of acceptance. This is the opinion received today. Yet others affirm that the concession is valid as soon as it is made, because it is a gracious concession. - Cf. Wernz, v. 4, n. 180, n. 218. - D'Annibale, v. 1, n. 225. Canon 37 must altogether be seen.

But if the Ordinary delegates assistants by statute, then capability for assisting is joined with the function or office. Cf. Vermeersch, l. c., n. 66.

Question 9. When does delegation cease?

Resp. Delegation ceases by revocation made by the delegating person and intimated to the delegate before the celebration of marriage; but if the priest assisted before the revocation was intimated to him, the delegation had not yet been efficaciously removed, and the marriage would be valid. - Cf. Ojetti, l. c., n. 34.

But if the delegating person dies or is deprived of office before the marriage, the delegate assists validly.

License given for a time or under condition also ceases when the time has elapsed or the condition has not been fulfilled.

Question 10. What must be said if the delegate by common error is held to be a priest but is not?

Resp. The delegation is valid, because a colored title with common error supplies the defect. Wernz, v. 4, n. 180, note 213.

Question 11. Can a delegate subdelegate?

Resp. Negatively, unless he has the special faculty of subdelegating.

Question 12. Which delegate has this faculty?

Resp. 1°. A delegate of the Roman Pontiff, unless the business has been reserved to the personal diligence of the delegate.

2°. A delegate of an inferior magistrate to the whole class of causes; or

3°. A delegate of the same inferior magistrate for assisting at one particular marriage, with the faculty of subdelegating received at the same time from the same. - Cf. Wernz, v. 2, nn. 553 and following.

Question 13. Can the local Ordinary or pastor concede this faculty of subdelegating?

Resp. Affirmatively.

Question 14. Who are delegates to the whole class of causes?

Resp. Delegates to the whole class of causes are those who are delegated either to all species of causes in some genus, for example, in parochial care, or to all causes contained in a certain species, for example, to all matrimonial causes. Thus Wernz, v. 2, n. 551. In our matter, delegates to the whole class of causes are: an assistant priest to whom all parochial functions are committed absolutely, fully, and without any restriction of parochial ministry; an assistant who is deputed to all matrimonial business.

Question 15. Are assistant priests among us to be held as delegates to the whole class of causes?

Resp. Negatively, but in each diocese it must be inspected whether faculties of assisting at all marriages in the parish are conceded to them.

Question 16. What is the distinction between the license concerning which in Canon 1095, § 2, and the license concerning which in Canon 1097, § 3?

Resp. The first (Can. 1095) is necessary for the value of the sacrament; the other (Can. 1097) for liceity; the first renders the priest to whom it is conceded a competent (authorized) witness of the contract; the other supposes him competent from elsewhere; the first is circumscribed by the territory of the conceding person, the other not likewise.

Titius and Bertha, pertaining to parish A, wish to enter marriage in parish B before the coadjutor of parish C. This coadjutor is altogether incompetent to assist at marriage; in order that he may put off that incompetence, he needs the license of the pastor (or Ordinary) of church B. Having received it, he becomes an authorized witness in the territory of parish B. And if he at once assisted there at the nuptials, these would be valid. Yet since the spouses are not subjects of the pastor of territory B, for licit assistance he needs the license of their own proper pastor, who is the pastor of territory A. This latter gives consent to the coadjutor of church C, who by the delegation received from the pastor of church B becomes the authorized witness of the nuptials of Titius and Bertha, who now at last can contract valid and licit marriage in the alien parish B before the aforesaid coadjutor.

Question 17. In what way must the delegate execute his function?

Resp. The delegate, in order that he may assist validly and licitly, is bound to observe the limits of the mandate. "Delegated power is to be understood strictly, nor is it extended to matters and cases not specified in the delegation," as Riganti says, Reg. Cancell., v. 1, p. 293. Therefore he who exceeds the limits of the mandate places invalid acts. Hence one delegated to assist at the nuptials of Titius and Bertha invalidly assists at the nuptials of Thomas and the same Bertha or at the nuptials of others; one delegated to assist at marriages to be contracted in this month of July invalidly assists after the month of July has elapsed. The delegate is subject to the same rules pertaining to validity or liceity to which the pastor is subject.

Notes: Wherefore, in order that the delegate may validly assist, it is necessary:

1°. that he have received delegation from competent authority, the local Ordinary or pastor, who already has obtained the benefice or begun office;

2°. that he not be excommunicated or interdicted or suspended from office by sentence, or declared such;

3°. that he exercise the delegation within the limits of the territory of the delegating person;

4°. that he ask for and receive the consent of the contracting parties.

Those things which are prescribed for the liceity of assistance pertain to the pastor rather than to the delegate, unless by diocesan law or custom the process by which free state is established is reserved to the Ordinary. Wherefore the pastor must first have moral certitude concerning licit celebration before he delegates another to assistance.

But if the pastor has done all these things, nothing remains to be furnished by the delegate except the bare ministry of assistance.

But if the pastor has not done them, either by himself or through another, the delegate himself is bound to do them; and in this case, in order that he may assist licitly, it is necessary:

1°. that it be established to him concerning the free state of the contracting parties; hence he himself must institute the inquiry;

2°. that it be established to him concerning the domicile or quasi-domicile, or at least concerning the monthly stay, of one or the other contracting party in the place of marriage;

3°. in defect of domicile or quasi-domicile or monthly stay, besides delegation from the Ordinary or pastor of the territory of the contract, that he have license from the Ordinary or proper pastor of one or the other contracting party, unless grave necessity excuses;

4°. as regards wanderers, that he refer the matter to the Ordinary or his delegate so that he may receive permission to assist;

5°. if the bride pertains to the parish of the contract, there will be no difficulty; but if the bridegroom, not the bride, pertains to it, then either delegation has been made by the Ordinary or by the pastor. If by the Ordinary, likewise there is no difficulty; if by the pastor of the bridegroom, since he himself can judge concerning the just cause excusing, he will scarcely ever delegate another unless it is established concerning it, and thus the delegate may proceed securely to the celebration. - Cf. Cronin, l. c., p. 219 and following. - Pezzani, l. c., n. 118. Vermeersch, l. c., n. 70. - Ojetti, l. c., n. 108. - Besson, l. c., p. 146. Gennari, l. c., p. 33.

If the pastor or Ordinary or delegated priest who would assist at marriage according to the norm of Canons 1095, 1096 cannot be had or approached without grave inconvenience:

1°. In danger of death, marriage contracted before witnesses alone is valid and licit; and even outside danger of death, provided it is prudently foreseen that that condition of affairs will last for a month;

2°. In either case, if another priest who can be present is at hand, he must be called and, together with the witnesses, must assist at the marriage, with the validity of the wedlock before witnesses alone saved (Can. 1098).

Thus far we have seen that the authorized witness of nuptials is either the local Ordinary, or the pastor of the territory of the contract, or one delegated by either. Now come, there are cases in which none of them can be had. Must one despair in these circumstances? By no means. For most wisely and most piously Holy Mother Church provides for these also, by establishing a twofold exception to the general law.

In danger of death, marriage contracted before witnesses alone is valid and licit if an authorized witness according to the norm of Canons 1095, 1096 cannot be had or approached without grave inconvenience. This canon in no way requires for validity the presence of a priest, but only of witnesses. Something is had for proving that wedlock has been entered, namely the presence of two or more before whom consent is furnished. It is altogether sufficient that these alone be present. In this indeed there is a great distinction between this canon and article VII of the Decree Ne temere: the Decree required the assistance of a priest and two witnesses; the canon requires not the former but the latter.

But for liceity, if another priest is at hand, he must be present together with the witnesses. The reason of the matter is that by his priestly help he may obtain God's blessing for the nuptials.

Question 1. How are the words, when danger of death is imminent, to be understood?

Resp. They are to be understood of every danger of death reasonably presumed, from whatever source it has arisen, in which one or the other contracting party is found. The reason of the first is taken from the end of the law, from the common use of speaking, from the consensus of theologians, and from parity with other sacraments; thus, for example, reasonably presumed danger suffices for this, that a non-approved priest absolve a penitent, that Extreme Unction be given, or Viaticum. Thus all. The reason of the second, because there is nothing in the law which restricts the sense of the words to danger arising from illness. For the words are general. Wherefore danger of death must be understood of every danger, whether from disease or from misfortune, for example, from shipwreck. The reason of the third, because cases in which each party lies gravely ill occur very rarely, and if such adjuncts had to be awaited, the exception would be of the least utility. Moreover, in relation to dispensations which can be conceded by Ordinaries in the gravest danger of death, we know that it is altogether sufficient that one party be found in it.

Question 2. How is that condition to be understood: if he cannot be had or approached without grave inconvenience?

Resp. Just as it lies, in its whole extension; for it can happen that someone, the pastor or local Ordinary, can be approached, yet on account of civil law he does not dare to assist, because the celebration is opposed, for example, by civil legislation; in this case the pastor cannot be had. It can be that time is not available for recurring to the Ordinary or to the pastor or delegate.

Moreover, this time is not to be taken mathematically but morally. A priest can validly and licitly proceed to celebrating marriage if there is present certain danger in delay, or probable or prudently doubtful danger, lest, while the pastor is awaited, the person die or be deprived of the senses, or, as Pezzani says, l. c., n. 121, "if an unusual hour or weather condition or notable distance brings grave inconvenience to the family of the sick person in approaching the pastor." In brief: "the principle is that the pastor is not called if there is danger in delay, or if grave inconvenience is present." - The same, ibidem.

Nor is it necessary to use an extraordinary means, for example, a telegraph, to have the pastor or delegate, or to obtain permission. - Cf. Letter of the Secretary of State, 10 Dec. 1891. This is what is commonly said concerning the telephone. For telegraph and telephone are less safe means and discordant with the style of law.

Moreover, this exception made to the general law for the good of souls living in such almost desperate circumstances demands a benign rather than a strict interpretation. Wherefore we ought not to be too scrupulous in the application of this canon. - Cf. Ojetti, l. c., nn. 113 and following. - Besson, l. c., pp. 147 and following. - Vermeersch, l. c., n. 73.¹

¹ Cf. Addenda, p. 1152, n. 128.

Question 3. In every case of imminent danger of death and impossibility of having the Ordinary, pastor, or delegate, is it licit to use this form?

Resp. Affirmatively, whenever there is a serious question of entering nuptials. For the law is general, it excepts nothing; therefore neither ought we to except. Certainly it is licit to use this form, among other things, for consulting for conscience and, if the case calls for it, for the legitimation of offspring. The exception certainly includes concubinarians, or those united civilly, or persons who foster illicit relations and cannot be separated without difficulty, or persons who, without true conversion, are separated, while nevertheless the mentioned relations are not broken off.

Question 4. What must be said concerning a case of danger of death and impossibility of having the pastor or delegate, when the persons are not civilly joined nor living in concubinage, yet have offspring which can be legitimated by marriage?

Resp. It is included in this canon. For the law does not distinguish; therefore neither ought we to distinguish. Then legitimation of offspring is established as a special and distinct reason on account of which the form is prescribed.

Question 5. Is all offspring legitimated by marriage?

Resp. By subsequent marriage of the parents, whether true or putative, whether newly contracted or convalidated, even not consummated, offspring is made legitimate, provided the parents were capable of contracting marriage between themselves at the time of conception, or pregnancy, or birth (Can. 1116).

Question 6. Must Canon 1098 be restricted only to those adjuncts which draw their origin from sins against the sixth precept of the Decalogue?

Resp. Negatively. The reason is that where the law does not distinguish, neither ought we to distinguish. And indeed adjuncts can arise from another source besides sins of lust, in which, when danger of death is imminent, consciences would be consulted for by marriage. Why therefore would the exception not have place in them?

Question 7. What priest can assist by force of this canon?

Resp. Any one whatever, not indeed for validity, but only for liceity. The law says: another priest, without handing down further designation.

Question 8. If any priest alone assists, is the marriage valid?

Resp. Negatively, because the law requires at least two witnesses for validity; thus according to the norm of this canon. It would indeed suffice that the priest be present together with another common witness; then satisfaction would have been made to the canon.

Question 9. Can any priest assisting according to the norm of this canon in danger of death dispense from impediments diriment by ecclesiastical law?

Resp. Affirmatively by force of Canon 1044, for consulting for conscience and the legitimation of offspring. - Cf. Can. 1043.

Question 10. Can any priest ever in this danger assist without witnesses?

Resp. Affirmatively, by force of Canon 1044, as below.

Outside the article of death it can happen that somewhere an authorized witness, the local Ordinary, pastor, or delegate, cannot be had. Think of regions of missions to which a legitimate minister very rarely comes, or kingdoms in which persecution rages, or very extensive districts through which a missionary is accustomed to travel only twice or three times in a year. Then certainly the Church does not wish to urge the form essential in ordinary adjuncts; otherwise marriage would have to be numbered among those things which cannot be done. Such cases obtained also under the chapter Tametsi, and provision was made for them. Thus, for example, S. Inq., 1 July 1863, to the Bishop of Valparaiso: "When access is difficult and not safe, and it is unknown when the pastor can be had, and it is foreseen that he will be absent from the place for the space of at least one month, and there is no other who supplies the place of the pastor, that marriage is valid without the presence of the pastor, yet with the form of the Council observed in it insofar as possible, namely with at least two witnesses employed." A fortiori, the Church, founding a law to be valid everywhere, admits some tempering; and just as in the particular impossibility of having the legitimate superior, when danger of death is imminent, satisfaction is made to it while the necessity for validity of the presence of two witnesses is retained, so in regional impossibility it is content with these last alone, as is clear from the following.

And also outside danger of death, provided it is prudently foreseen that that condition of affairs will last for a month (Can. 1098, 1°).

Therefore, just as in the article of death, so outside the article of death, if the pastor or local Ordinary or delegated priest who would assist at Marriage cannot be had or approached without grave inconvenience, provided that a prudent judgment is had that this condition of affairs will last for a month, Marriage is validly contracted before two witnesses. Therefore in some way the form is preserved and provision is made for the security of the sacrament.

In this case also, if another priest who can be present is at hand, he must be called and must assist at the Marriage together with the witnesses, with the validity of the wedlock before witnesses alone saved (Can. 1098, 2°).

Question 1. When is a legitimate minister judged unable to be had?

Resp. "When the contracting parties can in no way, or only with the greatest difficulty or danger, have recourse to the pastor or legitimate superior" (in the response of Pius VI, 3 Oct. 1793, to the doubts of the Bishop of Genoa); "or not without great difficulty" (Holy Office, 30 Jan. 1884); "or when access is difficult and not safe" (Holy Office, 1 July 1863).

Question 2. How long must this condition last before it is licit to use this form?

Resp. It is required that it be foreseen that it will last for a month; and thus the disposition of the Decree Ne temere has been changed, according to which actual duration for a month was necessary. And indeed, on account of that ordinance, at the end of the month wedlock could immediately be entered, although the pastor was going to arrive the next day; wherefore Marriages could become suspect. On the contrary, the Code posits as a necessary requisite actual and prudent foresight of the condition that will last for a month. For to wait for a month when Marriage is already almost prepared is a rather notable inconvenience and can be rather difficult and dangerous.

Question 3. Are the faithful bound to contract at least before a simple non-delegated priest, if he is present?

Resp. Affirmatively, according to n. 2 of this Canon, but not for validity.

Question 4. Can marriage be contracted before only two witnesses in danger of death, if the conditions of this canon are verified?

Resp. Affirmatively.

Question 5. In what does this impossibility consist?

Resp. The law itself declares it. It consists in this, that the pastor, etc., cannot be approached or had without grave inconvenience: "If he cannot be had or approached." Therefore it is clear that there is a twofold impossibility, namely, of having and of approaching. It happens not rarely that because of a shortage of priests several parishes are ruled by one pastor only, who cannot visit all of them every month. Likewise there are certain large parishes containing villages, even with a public chapel, very far apart, which within a month cannot be surveyed by the pastor at all, both because of the roughness of roads and because of the force of rivers; nor can the pastor be approached by the faithful.

But it can be asked what impossibility suffices, general or particular? No one will deny that the general suffices. But the learned vary as regards the particular. Indeed the words of the law can be verified in a particular difficulty equally as in a general one: the pastor cannot be had or approached. Yet there stands in the way the solution of a case in which pastors were prohibited by civil law from assisting at marriage unless civil wedlock had first been performed, which could not always be performed first; and yet for preventing evils and for the good of souls it was expedient to enter nuptials. The response given by the Sacred Congregation de Sacr. was: Let recourse be had in individual cases, except in the case of danger of death, in which any priest can dispense even from the impediment of clandestinity, permitting that, in the reported adjuncts, marriage be contracted validly and licitly with witnesses alone, 30 Jan. 1916. Now come, at that time the Code was about to be published, and nevertheless a solution was given requiring recourse outside the article of death. Is it licit to suppose that the Sacred Congregation de Sacr. was going to give a response to be modified immediately or soon in the Code? In the case, speaking absolutely, the pastor can be approached and had, wherefore the condition is not verified. Cf. La Civilta Cattolica, year 69, v. 2, p. 35. Yet 1°. In a particular case where the words of the canon are verified, we judge, with better judgment saved, that particular impossibility also is understood. The reason is that in the same text and context the same signification must be attributed to the same words, unless a clear reason proves the contrary. Therefore also to the words "If he cannot be had or approached" the same signification belongs when applied to the case in danger of death and to the case outside danger of death. Hence the impossibility which suffices for one must be said to suffice also for the other, whether it is general or particular. Otherwise the words in the same context exclude in one case an extension, say to particular impossibility outside the article of death, which they include in another case. Moreover, the canon has one condition expressed in the same words for two conditioned cases; nor is anything present to signify that that condition is not to be extended equally to the two conditioned cases. In other words, the condition is the same in both places, it must be taken naturally, and when the words expressing the condition are verified, the conditioned case enters. Then, is not the author of the canon to be supposed by law to have willed what he said, especially since he could easily have excluded some sense expressed in the words? Wherefore not undeservedly do we say: when the condition is verified, whether in general or in particular impossibility, the canon can by law be applied.¹

¹ Cf. Addenda, p. 1152, n. 128.

Question 6. Does the impossibility concerning which in the canon exist when the spouses cannot have their own pastor or his delegate, yet can easily approach another pastor in the nearest parish and contract before him?

Resp. Negatively, for then a pastor can be had who may assist at Marriage according to the norm of Canons 1095, 1096.

Question 7. Whether by reason of a momentary, unexpected passage through some place, wholly unknown to the faithful, from which a missionary is already foreseen to be absent for a month, that condition of affairs concerning which in this canon must be said to be interrupted?

Resp. Negatively, the foresight of monthly absence would be equally prudent as if he did not come.

Question 8. What must be affirmed concerning the furnishing of consent?

Resp. Nothing else is required except that consent itself in the present into marriage be elicited by the parties before two witnesses. Nor are the witnesses bound to require and accept consent.

Question 9. Whether he validly enters marriage before witnesses alone who betakes himself, in fraud of the law, to a place in which the condition of all this canon would be verified?

Resp. "Affirmatively." S. C. de Sacr., 13 Mar. 1910.

Question 10. Is it licit to enter marriage on a ship by force of this canon?

Resp. Affirmatively, both in the article and outside the article of death, if the conditions of the canon are verified. There is altogether nothing in the canon which injects doubt to the contrary.

§ 1. Once marriage has been celebrated, the pastor or the one who acts in his place is to describe as soon as possible in the book of marriages the names of the spouses and witnesses, the place and day of the celebrated marriage, and other things according to the mode prescribed in the ritual books and by the proper Ordinary; and this although another priest delegated either by himself or by the Ordinary assisted at the marriage.

§ 2. Moreover, according to the norm of can. 470, § 2, the pastor is also to note in the book of the baptized that the spouse contracted marriage on such a day in his parish. But if the spouse was baptized elsewhere, the pastor of the marriage is to transmit notice of the entered contract to the pastor of baptism, either by himself or through the episcopal Curia, so that the marriage may be referred into the book of the baptized.

§ 3. As often as marriage is contracted according to the norm of can. 1098, the priest, if he assisted at it, otherwise the witnesses, are bound in solidum with the contracting parties to see that the entered wedlock be noted as soon as possible in the prescribed books (Can. 1103).

Therefore the pastor, or the one who acts in his place, is bound at once and accurately to describe the contracted marriage in the book of marriages according to the formula prescribed in the Roman Ritual or by the Ordinary. This statute, § 1, agrees with those things which are found in the Ritual: "When all things have been completed, the pastor by his own hand is to describe in the book of marriages the names of the spouses and witnesses and other things according to the prescribed formula; and this although another priest delegated either by himself or by the Ordinary celebrated the marriage." - Roman Ritual, De Sacram. Matrim.

It is known that among the obligations of pastors is the care of parochial books, which are named in the same Ritual, edition of Benedict XIV, in the last title. "The matrimonial books of the Church," says Wernz, v. 4, n. 198, "since they have been constituted by public authority in legitimate form, and the pastor presides over them by his office and as authorized witness, have full faith and force of public instruments, and the same is valid concerning attestations drawn wholly and duly by the pastor from the same books, unless falsification is proved."

Question 1. Who must make the description in the book of marriage?

Resp. The pastor or the one who acts in his place ... and this although another priest delegated either by himself or by the Ordinary assisted at the marriage. Therefore the description must be made by him who presides over the parish, or by him who habitually acts in the place of the former laboring under old age or infirmity.

Question 2. When must the pastor make this description?

Resp. As soon as possible; for this is clearly proclaimed in the law. Indeed, the best thing would be, when the nuptials have been celebrated, immediately to bring the spouses and witnesses into the sacristy and there to transcribe the acts into the matrimonial register, which is laudably done in many places. At least within three days the pastor must fulfill this function.

Question 3. What must the pastor describe?

Resp. The names of the spouses and witnesses, the place and day of the celebrated marriage, and other things according to the mode prescribed in the ritual books and by the proper Ordinary. In the Roman Ritual various formulas for various adjuncts are found, as for example if a delegate assisted, if denunciations were omitted or dispensations conceded. The Ordinary can also add other things to the prescriptions of the Ritual according to the customs of the region, which some Bishops have already done in certain dioceses, for example, concerning the signature of those about to be married and of the witnesses. In brief: in this matter let the pastor conform himself to the Roman Ritual and diocesan statutes.

Question 4. Is the obligation of describing marriages in the register grave?

Resp. Affirmatively, for it is a question of a matter of the greatest moment, namely that the validity of wedlocks be authentically established. Hence it is not only a mortal sin to omit the description, but also to defer it in such a way that from this there arises danger of forgetfulness or of errors in things necessarily to be noted. Indeed, it is clear to all how great are the inconveniences that arise for spouses if the description is either not made at all or not made in the proper mode. Moreover, this obligation arises from the quasi-contract which the pastor enters when he takes the office upon himself.

In the second paragraph of this canon a wholly new disposition of law is introduced, by force of which the pastor is bound to note in the book of baptisms that this baptized person, on such a day, contracted marriage in his parish. But if each spouse or one was baptized elsewhere, the pastor of the marriage must transmit notice of the entered contract to the pastor of baptism, so that the marriage may be referred into the book of baptism.

Question 5. What must the pastor of both marriage and baptism transcribe into the baptismal register?

Resp. If the words of the article are taken in themselves, it suffices simply to note at the end or in the margin of the baptismal inscription: this man (this woman) on the day - contracted marriage in this parish. But no one fails to see how useful it would be to add the name of the co-party, for example: this man (this woman) on the day - contracted marriage with NN. in this parish.

Question 6. What must the pastor of the marriage transmit to the pastor of baptism?

Resp. "Notice of the entered contract," that is, "NN. contracted marriage with NN. on the day - in the parish -." In this case the marriage itself is to be referred into the book of baptisms. Moreover, the pastor of the marriage is bound to transmit this notice to the pastor of baptism both of the bridegroom and of the bride, if they were baptized in diverse parishes.

Question 7. Is the transmission of this notice and the description in the book of baptisms obligatory?

Resp. Affirmatively, and indeed under grave obligation. For the end is that the change of state and the impediment of bond be established, and therefore invalid marriages be avoided. The process concerning free state will also be more expeditious. In preparing it, the pastor must ask from the future spouses a recent document of baptism.

Question 8. In what way must the pastor of the marriage complete this transmission?

Resp. "Either by himself or through the curia"; but which curia, his own or that of the place of baptism, is not decreed. Wherefore the pastor of the marriage will be free to transmit the notice to the pastor of baptism immediately, or by means of his own curia or the curia of the pastor of baptism.

Question 9. To what is the priest assisting in danger of death according to Canon 1098 bound?

Resp. He is bound "in solidum with the contracting parties to see that the entered wedlock be noted as soon as possible in the prescribed books." The reason is that marriage may be authentically established. Therefore the priest must as soon as possible give notice of the marriage to the pastor of the place of contract, who is to describe it in the aforesaid books and transmit a message to the pastor of baptism, if the spouses were baptized in another parish.

The obligation incumbent upon the assisting priest in solidum with the contracting parties is grave, as is clear from the end of the law. And because it is solidary, all and each are bound; but if one has satisfied the obligation, the others are released from obligation; if one is lacking, the others are bound.

Question 10. To what are the witnesses of a marriage according to the norm of Canon 1098 bound?

Resp. They are bound in solidum with the contracting parties to furnish the same thing to which the priest is bound with the contracting parties in the former case.

Instruction to Ordinaries concerning free state and the denunciation of an entered marriage with relation to the decree Ne Temere.

I. "It is recalled to the memory of pastors that it is not licit for them to be present at marriage unless it has been legitimately established to them concerning the free state of the contracting parties, with those things to be observed by law being observed; and the same are especially to be admonished not to omit requiring testimony of baptism from the contracting parties, if this was conferred on them in another parish.

II. "But that the things prescribed in n. IX, sec. 2, of the mentioned Decree may be duly observed, the denunciation of the celebrated marriage to be transmitted to the pastor of baptism should carry with itself the described names and surnames of the spouses and of their parents, the age of the contracting parties, the place and day of the nuptials, the names and surnames of the witnesses who were present, and should have the subscribed name of the pastor with the parochial seal added. But an accurate inscription should indicate the parish, diocese, town or place of baptism of the spouses and those things which pertain to writings to be safely transmitted by public carriers.

III. "If perhaps it happens that, even with the cautions concerning which in n. 1 employed, the pastor of baptism, in receiving the denunciation of marriage, discovers that one or the other of the contracting parties is already bound to other nuptials, he will signify the matter as soon as possible to the pastor of the attempted marriage." - S. Cong. Sacr., 6 Mar. 1911.

§ 1. The following are bound to observe the form established above:

1. All baptized in the Catholic Church and converted to it from heresy or schism, although either the former or the latter afterward defected from it, as often as they enter marriage among themselves;

2. The same, of whom above, if they contract marriage with non-Catholics, whether baptized or non-baptized, even after a dispensation has been obtained from the impediment of mixed religion or disparity of cult;

3. Orientals, if they contract with Latins bound to this form.

§ 2. But with the prescription of § 1, n. 1, remaining firm, non-Catholics, whether baptized or non-baptized, if they contract among themselves, are nowhere bound to observe the Catholic form of marriage; likewise those born of non-Catholics, although baptized in the Catholic Church, who from infant age grew up in heresy or schism or infidelity or without any religion, as often as they contract with a non-Catholic party (Can. 1099).

Question 1. Who are bound by this law?

Resp. The following are bound:

1. All baptized in the Catholic Church.

2. All converted to it from heresy or schism.

3. All these and those afterward defecting from the Church.

4. All of whom in nn. 1, 2, 3, contracting with non-Catholics, whether baptized or non-baptized.

5. Orientals contracting with Latins bound by this form.

Question 2. Who are not bound by this form?

Resp. The following are nowhere bound: 1. Non-Catholics entering marriage among themselves. 2. Those born of non-Catholics, although baptized in the Catholic Church, who from infant age grew up in heresy or schism or without any religion, as often as they have contracted nuptials with a non-Catholic party. One not yet of puberty before the full seventh year is called an infant, or child, or little one, and is considered not master of himself; but when the seventh year has been completed, he is presumed to have the use of reason. Hence a non-Catholic non-baptized man validly enters with a non-Catholic non-baptized woman without this form; a baptized non-Catholic is not bound by this form when entering with a non-Catholic non-baptized woman; a baptized non-Catholic is not bound by this form when entering with a non-Catholic baptized woman. Nor are the following bound, 3. those born of heretics, schismatics, or infidels, baptized in the Catholic Church, but grown up from infant age in heresy or schism, as often as they have contracted with non-Catholics. With these two cases excepted, others are bound, for example, those born of those who are Catholics and baptized in the Catholic Church, although afterward from infant age they were grown up in heresy. There is one class of those baptized in the Catholic Church for whom the Code provides in a special mode by this canon 1099, § 2; nevertheless that special provision is not for every marriage, but only for that which they have contracted with non-Catholics, not however for a marriage which they have contracted with Catholics, nor for a marriage, as it seems, which they have contracted with a party of the same condition, namely born of non-Catholics but baptized in the Catholic Church, although grown up from infant age in heresy. For such persons are not simply called non-Catholics, as seems to be clear from this canon itself, where a distinction is found between those baptized in the Church and non-Catholics.¹

¹ Cf. Addenda, p. 1090, n. 18.